Disentangling the Sixth Amendment
56 Pages Posted: 14 Mar 2009
Date Written: August 1, 2008
The Sixth Amendment, framed in an atmosphere of deep mistrust of a potentially oppressive government, mandates that defendants in all criminal prosecutions be provided seven fundamental procedural protections. Despite the broad language of the Sixth Amendment, the scope and meaning of its protections have undergone significant development over the course of the two centuries, leading to the Court's adoption of a number of textually inconsistent constructions of the Sixth Amendment, ones that have rendered the Sixth Amendment far less protective of individual liberty.
After developing a historical account of the Court's Sixth Amendment jurisprudence, this Article provides a doctrinal framework for understanding the origins of the textually inconsistent, restrictive readings of the Sixth Amendment. Specifically, the Article claims that these constructions can be traced to the entanglement of the Sixth Amendment with the Fourteenth Amendment's Due Process Clause. While in some instances the Court has entangled the two constitutional provisions during the process of incorporating the Sixth Amendment, in other instances the Court has entangled them by using interpretative methodologies more properly applicable in the Due Process context to give meaning to the Sixth Amendment's provisions. The Court has also entangled the two constitutional provisions by locating expansive procedural protections in the Sixth Amendment instead of more properly deriving them from general Due Process principles, ironically opening the door to future restrictive readings of the Sixth Amendment.
In developing this doctrinal framework, the Article begins by discussing two recent seminal developments in the Court's criminal procedure jurisprudence. In particular, the Article argues that the Court's decisions in Apprendi v. New Jersey, 530 U.S. 466 (2000), and Crawford v. Washington, 541 U.S. 36 (2004), can be seen as part of the same endeavor to return to more textually sound constructions of the Sixth Amendment. The Article then canvasses the various provisions of the Sixth Amendment, identifying those textually inconsistent readings that can be traced to the entanglement of the Sixth Amendment and proposing alternate, textually consistent constructions, ones that prove more faithful to the critical role of the Sixth Amendment in safeguarding individual liberty.
Keywords: Sixth Amendment, textualism, Fourteenth Amendment, Due Process, liberty, Supreme Court, criminal procedure, constitutional law, sentencing, confrontation, public trial, speedy trial, jury trial, right to counsel, compulsory process, predicate clause, incorporation
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